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LEGAL NOTE | CHANGES TO MARRIAGE LAWS IN SOUTH AFRICA

Cabinet has approved the publication of the Draft Marriage Bill of 2022 for public comment. The Bill gives effect to the White Paper on Marriages in South Africa which was approved by Cabinet in March 2022, said Minister in The Presidency Khumbudzo Ntshavheni who was briefing media on the outcomes of the Cabinet meeting held on Wednesday, 21 June 2023.


The Bill empowers the Department of Home Affairs to develop a single Marriage Act for the country.


“The Bill seeks to ensure that all marriages are concluded in accordance with the principles of equality, non-discrimination and human dignity as provided for in the Constitution of the Republic of South Africa of 1996,” said the Minister.


The Draft Bill allows South Africans and residents in the country of all sexual orientations, as well as religious and cultural persuasions, to conclude legal unions in line with the constitutional principles. The Bill outlines measures to prevent unions such as child marriages and those done in the absence of the other party.


In the interim, Cabinet has also approved the submission of the draft Divorce Amendment Bill of 2023 to Parliament. The Bill amends the Divorce Act (Act 70 of 1979) so as to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages.


The amendments also aim to provide for the redistribution of assets on the dissolution of a Muslim marriage, to provide for the forfeiture of patrimonial benefits of a Muslim marriage.


“In June 2022, the Constitutional Court had found that the Divorce Act in its current form to be inconsistent with the Constitution as it excludes Muslim Marriages. The court found that a section of the Divorce Act is unconstitutional in that it unfairly discriminates against children of married parents and those of unmarried parents,” said the Minister.


Big changes for marriages

The Department of Home Affairs (DHA) is moving ahead with the Marriages bill with the goal to table the proposed laws in Parliament in 2024. By March 2024 the department hopes to have the necessary cabinet approval to table the draft bill to Parliament which seeks to resolve a major problem with South Africa’s current marriage laws.


The department said that despite all the changes that have been made to marriage legislation in South Africa post 1994, there are still serious gaps that need to be addressed.


For example, the current legislation does not regulate some religious marriages, such as the Hindu, Muslim and other customary marriages practiced in some African or royal families.


To address this, the DHA embarked on a process in 2021 to develop an “umbrella” marriage policy, which will present the country with a new single legislation.


Currently, marriages in the country are regulated through the following:

  • The Marriage Act – for the monogamous marriage of opposite-sex couples.

  • The Recognition of Customary Marriages – for polygamous marriages of opposite sex couples.

  • The Civil Union Act – for monogamous partnerships for same-sex and opposite sex couples.

Essentially, the new bill will bring all the previous pieces of legislation under one umbrella and address gaps that may remain in the current legislation.


Regarding the process of this bill actually coming to fruition, the DHA said that the development of relevant policy would inform the legislative and parliamentary processes to be implemented over the medium term.


Come the financial year 2024/25, the DHA plans to have the Marriage Bill tabled in Parliament, where it will undergo scrutiny by both the National Assembly and the National Council of Provinces. Talk of the new bill dates back years to when the DHA began public consultations on its Green Paper on Marriages in South Africa.


Some of the most notable changes that were mooted under the green paper include:

  • The new Marriage Act will enable South Africans of different sexual orientations, religious and cultural persuasions to conclude legal marriages;

  • The introduction of strict rules around the age of marriage (including the alignment of the age of majority in the marriage legislation to the Children’s Act);

  • It will align the marriage, marital property and divorce legislation to address marital property and intestate succession matters in the event of the marriage dissolution;

  • It will allow for equitable treatment and respect for religious and customary beliefs in line with Section 15 of the Constitution.

  • It will deal with the solemnisation and registration of marriages that involve foreign nationals;

  • It will deal with the solemnisation and registration of customary marriages that involve non-citizens, especially cross-border communities, or citizens of our neighboring countries.

(Issued by SANews)

We will revisit this legal update when more information becomes available.


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